No duty owed to taxi driver
A council has won an appeal in the High Court in a psychiatric injury claim brought by a taxi driver. David Green explains why.
Bourne J this month handed down judgment in Arshad v Wokingham District Council [2022] EWHC 2419 (KB).
Background
The Claimant, Mr Arshad, was a hackney carriage driver. He was required to buy a new vehicle to ply for hire. After an informal inquiry to Wokingham’s licensing department, he was (erroneously) advised that a particular vehicle would be licensable under the council’s disabled access policy.
Unfortunately it was not, and shortly after licensing the new vehicle, Wokingham inspected it (after receiving complaints) and took steps to remove Mr Arshad’s licence. He subsequently converted his licence to a private hire licence, where the disability access condition did not apply.
Mr Arshad, a litigant in person, presented claims of religious discrimination, negligence, and breach of duty against Wokingham. He alleged that he had suffered various financial losses, and a psychiatric injury. He also sought aggravated and exemplary damages.
In the Oxford County Court, HHJ Melissa Clarke allowed the claim. She held that Wokingham’s advice was a negligent misstatement, per Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, HL; that a duty was owed by Wokingham to Mr Arshad; and that it was reasonably foreseeable that a threat to a taxi driver’s livelihood might cause upset, and thereby a psychiatric injury.
While most of Mr Arshad’s specific heads of loss failed on the evidence, he did establish that he had suffered a psychiatric injury, and so recovered general damages of £42,500, plus £290 for prescriptions and miscellaneous expenses.
Appeal
Wokingham appealed to the High Court.
Bourne J considered a number of requirements for the existence of a duty of care in the tort of negligence. In particular, it was necessary for Mr Arshad to show that a psychiatric injury was specifically foreseeable (since he was not a primary victim), applying the principle of Hatton v Sutherland [2002] ICR 613, CA, and mindful of the policy considerations set out in Frost v Chief Constable of South Yorkshire [1999] 2 AC 455, HL. Even serious threats to individuals’ careers are not sufficient to establish foreseeability without something more specific (Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512).
Applying the required level of analysis to the facts, psychiatric harm was not specifically foreseeable: since this is an essential element of the duty of care, no duty in negligence was owed by Wokingham to Mr Arshad. The appeal therefore succeeded, and Mr Arshad’s claim was dismissed.
Analysis
Cases about the existence of a duty of care in negligence are relatively rare, since most negligence arises in circumstances where the duty of care position is well established.
However, in Arshad, the parties were in a relatively novel relationship (at least in duty of care terms): Mr Arshad was Wokingham’s licensee, and Wokingham was exercising statutory functions in pursuit of certain policy aims.
While these considerations alone would not have been enough for a duty of care to have been avoided, for psychiatric injuries in particular the foreseeability requirement operates somewhat differently depending on the relationship between the parties. In particular, there are “control mechanisms” on foreseeability for secondary victims which do not exist for primary victims; and the duties owed to other common categories of victim, such as employees and rescuers, and subtly different again.
The review of the venerable authorities in Arshad illustrates the fact that there is at least a search for principle in these seemingly arbitrary categories, and that a court considering a psychiatric injury claim in a novel category is required to consider the reasons for the current legal taxonomy in order to derive the applicable principles.
David Green is a barrister at 12KBW. He represented Wokingham Borough Council at first instance and on appeal, instructed by Tom Challis of Weightmans.
